Children associated with terrorist groups in the context of the legal framework for child soldiers - QIL QDI
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Children associated with terrorist groups
in the context of the legal framework for child soldiers
Nina H.B. Jørgensen*
1. Introduction
The high profile case of nineteen-year-old Shamima Begum, who ran
away from her home in London when she was fifteen to join the Islamic
State (IS) in Syria and was discovered, heavily pregnant, in a camp for
internally displaced persons in early 2019, refocused attention on the
issue of children who join terrorist organizations.1 Upon her arrival in
Syria in 2015, Begum quickly married a Dutch IS fighter and they had
three children together, all of whom died in their infancy, the third
succumbing in the squalor of the camp just as Begum was stripped of her
British citizenship. Political and legal opinion are divided over whether
Begum is a victim or a perpetrator, or in either instance a security risk,
and if, where and how she should face justice.2 There has been little
serious consideration of whether Begum should be characterised as a
former child soldier and whether such a characterisation carries special
implications in the context of terrorism.
*
Professor of Public International Law, University of Southampton.
1
See eg M Townsend, ‘UK under Pressure to Return Children of Isis Mothers’ The
Observer (7 April 2019) ; O Bowcott, ‘Surge in
Prosecutions of British Jihadists “May Never Happen” – DPP’ The Guardian (11 March
2019) .
2
See eg T Kington, ‘45,000 Children of Isis “Are Ticking Time Bomb”’ The Times
(8 May 2019); ‘The Observer View on Shamima Begum’ The Observer (editorial) (17
February 2019) ; L Wallis, ‘Shamima Begum Was the Victim of a Cult – She
Needs Help’ The Guardian (opinion) (11 March 2019) .
QIL, Zoom-in 60 (2019) 5-236 QIL 60 (2019) 5-23 ZOOM IN
This article aims to provide a preliminary assessment of the extent to
which the phenomenon of children who are recruited or born into
terrorist groups fits within the legal and conceptual framework
concerning the recruitment and use of child soldiers. As both ‘terrorism’
and ‘terrorist group’ lack universally accepted definitions, reliance is
placed on United Nations, regional and national sanctions lists to identify
relevant organisations. This article will focus on the activities of Islamic
State (IS or ISIL) in Syria and Iraq, and Boko Haram in Nigeria to illus-
trate the factual context. Recruitment and exploitation of children by
terrorist groups is not a new occurrence. Indeed, one of the first cases to
be instituted before the International Criminal Court (ICC) concerned
the activities in Uganda of Joseph Kony’s Lord’s Resistance Army (LRA)
– a group included in the US State Department’s Terrorist Exclusion List
and designated a terrorist group by the African Union in 2011.3 While
Kony remains at large, the trial of the alleged former commander of
LRA’s Sinia Brigade, Dominic Ongwen, once himself a child soldier, is
ongoing before the ICC.4 The ICC does not distinguish between armed
groups and terrorist groups so long as the elements for the crimes under
the 1998 Rome Statute are met. 5 The distinctions become more apparent
when the issue of ‘foreign fighters’ and the possibility of domestic
prosecutions under anti-terror legislation are considered. As the Begum
case illustrates, there is an absence of international consensus on how to
approach ‘former foreign child fighters’ and their children who are born
into terrorist groups.
3
US State Department, Terrorist Exclusion List, Section 411 of the USA PATRIOT
ACT of 2001 (8 USC § 1182) . See also US
Department of State Fact Sheet (archived) (23 March 2012) stating that the African Union
formally designated the LRA as a terrorist group on 22 November 2011, and that in 2008,
Joseph Kony was designated by the State Department as a ‘Specially Designated Global
Terrorist’ under Executive Order 13324 .
4
Prosecutor v Dominic Ongwen, Situation in Uganda, ‘Decision on the confirmation
of charges against Dominic Ongwen’, ICC-02/04-01/15-422-Red (23 March 2016).
5
Rome Statute of the International Criminal Court, Doc A/CONF.183/9 (17 July
1998) in force 1 July 2002.Children associated with terrorists groups 7
2. The Role and Circumstances of Children in Terrorist Groups
Like all child soldiers involved with armed groups, children who are
recruited into terrorist organisations are exposed to extreme forms of
violence. They may bear arms and participate directly in hostilities, act
as porters or spies, and be subjected to forms of sexual and gender-based
violence such as sexual slavery and forced marriages. In addition, they
may be involved in activities more typically associated with terrorism
such as suicide bombings and the execution of hostages. Consequently,
they become normalised to violence and for children born into terrorist
groups, this upside-down world is the only one they know.
According to United Nations estimates, at least 8,000 children have
been recruited into Boko Haram since 2009, including children as young
as four.6 Poverty, illiteracy, unemployment, peer and family pressure,
combined with social injustice, have been cited as factors facilitating re-
cruitment, although abduction is a widely used method to expand mem-
bership of the group.7 The activities carried out by children in Boko Ha-
ram from around 2013 to 2016 were reported by the UN Secretary-Gen-
eral as follows:
Children were used in direct hostilities, for planting improvised ex-
plosive devices and burning schools and houses and in support roles such
as cooks, messengers and lookouts. Children were also reportedly used
as human shields to protect Boko Haram elements during military oper-
ations. Many children were also subjected to forceful religious conver-
sions and forced marriage and used for sexual purposes. Predominately
from mid-2014 to the end of the reporting period, children, including
girls as young as 10, were used by Boko Haram in suicide bombings.8
Some of the most notorious acts have involved the targeting of
schoolgirls. On 14 April 2014, Boko Haram abducted at least 276 girls
from a government secondary school in Chibook, Nigeria. More than
one hundred of those girls remain missing.9 In February 2018, 113 girls
6
‘Report of the Secretary-General on children and armed conflict in Nigeria’ UN
Doc S/2017/304 (10 April 2017) paras 29-30.
7
ibid paras 30-31.
8
ibid para 32.
9
F Mbah, ‘Nigeria's Chibok Schoolgirls: Five Years On, 112 Still Missing’ Al Jazeera
(14 April 2019) ; D Searcey, ‘Why the Chibok Girls Returned by8 QIL 60 (2019) 5-23 ZOOM IN
were abducted from the Government Girls’ Science Technical College in
Dapchi, Yobe State. Although 107 of those girls were later released, five
died during the incident and one was apparently kept captive.10 Boko
Haram has repeatedly forced children to carry out suicide attacks.11 It
was reported that in May 2015, a girl of around twelve detonated a bomb
at a bus station in Damaturu, Yobe State resulting in the deaths of seven
people.12
The UN estimates that at least 7,000 girls and women have been vic-
tims of sexual violence at the hands of Boko Haram since 2009, often in
connection with abductions and forced marriage.13 Scores of girls be-
tween the ages of nine and eighteen are believed to have been raped and
forced into marriages with Boko Haram members and many of them have
become pregnant and given birth.14 A study found that girls and women
formerly associated with Boko Haram face stigma and are unable to re-
integrate into their families and communities.15 Many children have be-
come orphans, or do not know the whereabouts of their parents.16 The
number of verified cases of child recruitment and use in hostilities is be-
lieved to be decreasing.17 However, the use especially of girls ‘as carriers
of person-borne improvised explosive devices’ continues to be identified
as a ‘worrying trend’.18
As it concerns IS/ISIL, the recruitment and training of children has
been a notable aspect of its modus operandi and video evidence has
Boko Haram Are Still Not Entirely Free’ The Independent (1 May 2018)
.
10
ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2018,
para 228.
11
‘Report of the Secretary-General, Children and Armed Conflict’ UN Doc
A/72/865–S/2018/465 (16 May 2018) para 7.
12
‘Report of the United Nations High Commissioner for Human Rights on violations
and abuses committed by Boko Haram and the impact on human rights in the affected
countries’ UN Doc A/HRC/30/67 (29 September 2015) para 44.
13
‘Report of the Secretary-General on children and armed conflict in Nigeria’ UN
Doc S/2017/304 (10 April 2017) para 54.
14
ibid paras 55-56.
15
ibid para 57, referring to a 2016 study by UNICEF and International Alert.
16
‘Report of the United Nations High Commissioner for Human Rights on violations
and abuses committed by Boko Haram’ (n 12) para 46.
17
‘Report of the Secretary-General, Children and Armed Conflict’ (n 11) para 223.
18
ibid para 226.Children associated with terrorists groups 9
emerged of children serving as executioners. UN reports indicate that
284 verified cases of the recruitment and use of children were attributed
to ISIL in 2017, marking a notable increase.19 According to the most
recent report of the Secretary-General on children and armed conflict in
the Syrian Arab Republic:
‘The youngest recruit was four years of age. The boy, of foreign origin,
was dressed in military fatigue, made to carry a weapon and featured in
ISIL propaganda videos as a so-called “Cub of the Caliphate”. Of the
boys recruited by ISIL (982), 92 per cent were used in combat roles,
such as guarding checkpoints, participating in patrols and front-line op-
erations and conducting suicide attacks; while the remaining 8 per cent
were used in support roles, such as aides-de-camp, messengers, spies or
prison guards. Children were also used to commit a broad range of
atrocities, including executions. Sixty-eight girls as young as eight years
of age were also associated with ISIL through their forced marriage
with, most often, foreign combatants […].’20
The report elaborates on the forms of sexual violence inflicted on
children, explaining that from early 2014, the forced marriage of girls to
ISIL fighters became commonplace, usually accompanied by rape and
often leading to multiple forced marriages following the redeployment or
death of the fighters. In some instances, parents would be coerced into
agreeing to the arrangement while in others, delegations of ISIL women
would be sent to visit homes and recruit brides.21
The foreign terrorist fighter phenomenon became prominent with
the emergence of IS and its transnational recruitment strategy. Some
children have travelled to join IS of their own accord, as was the case for
Begum and her school friends, some have travelled with their parents or
relatives, and some have been abducted or born into the terrorist group.
Foreign terrorist fighters (FTFs) have been defined by the UN Security
Council as ‘individuals who travel to a State other than their State of res-
idence or nationality for the purpose of the perpetration, planning or
preparation of, or participation in, terrorist acts or the providing or re-
ceiving of terrorist training, including in connection with armed
19
ibid paras 184-185.
20
‘Report of the Secretary-General, Children and Armed Conflict in the Syrian Arab
Republic’ UN Doc S/2018/969 (30 October 2018) para 17.
21
ibid para 31.10 QIL 60 (2019) 5-23 ZOOM IN
conflict’.22 Their arrival helped to exacerbate conflict in the Middle East
and it has been noted that ‘most, if not all, FTFs will have been exposed
to violence – including acts of extreme violence, such as beheadings and
suicide bombings – and many will have gained combat experience and
varying degrees of weapons and explosives training.’23 Women and girls
may not have participated in combat and instead provided support for
the group through domestic roles.24 However, there is no automatic or
necessary exclusion of women from roles involving violence.
In 2018, the UN Secretary-General reported that both IS and Boko
Harman continued to recruit and use child soldiers and that these activ-
ities had a cross-border dimension.25 Reference was made to the complex
task of ‘prevention, tracing and reintegration’ and the need for a coordi-
nated international response under international law.26 The Office of the
UN High Commissioner for Human Rights has called for prompt, thor-
ough and independent investigations of crimes against humanity and war
crimes attributed to Boko Haram as well as the invocation of special
measures to protect child victims.27 Similar calls for accountability have
echoed throughout the eight year conflict in Syria.
3. The recruitment and use of child soldiers under International Law28
The Rome Statute of the ICC includes in its Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) the enlistment, conscription or use in hostilities of children
under the age of fifteen years as war crimes entailing individual criminal
22
UN Doc S/RES/2178 (2014) (24 September 2014) para 6.
23
‘The Challenge of Returning and Relocating Foreign Terrorist Fighters: Research
Perspectives, UNSC Counter-Terrorism Committee Executive Directorate (CTED),
CTED Trends Report’ (March 2018) 6 .
24
ibid.
25
‘Report of the Secretary-General, Children and Armed Conflict’ (n 11) para 16.
26
ibid.
27
‘Report of the United Nations High Commissioner for Human Rights on violations
and abuses committed by Boko Haram’ (n 12) para 78.
28
This section draws on material from: NHB Jørgensen, ‘Child Soldiers and the
Parameters of International Criminal Law’ (2012) 11 Chinese J Intl L 657-688.Children associated with terrorists groups 11
responsibility.29 Previously, children associated with armed conflict were
the subject of limited humanitarian law provisions contained in the 1977
Protocols I and II Additional to the Geneva Conventions. Article 77(2)
of Additional Protocol I requires parties to international armed conflicts
to ‘take all feasible measures in order that children who have not attained
the age of fifteen years do not take a direct part in hostilities’ and to re-
frain from recruiting children under the age of fifteen into their armed
forces, in any case giving priority to the oldest children of those within
the fifteen to eighteen age bracket.30 Article 4(3)(c) of Additional Proto-
col II applicable in non-international armed conflicts provides that: ‘chil-
dren who have not attained the age of fifteen years shall neither be re-
cruited in the armed forces or groups nor allowed to take part in hostili-
ties.’31 According to the International Committee of the Red Cross
(ICRC), the rule that ‘children must not be recruited into armed forces
or armed groups’ is recognised under customary international law irre-
spective of the nature of the armed conflict.32
In the human rights sphere, Article 38(2) of the 1989 Convention on
the Rights of the Child provides that ‘States Parties shall take all feasible
measures to ensure that persons who have not attained the age of fifteen
years do not take a direct part in hostilities’ and Article 38(3) calls on
States to refrain from recruiting children under the age of fifteen into
their armed forces (while again giving priority to those who are oldest
within the fifteen to eighteen age bracket).33 The Optional Protocol to
the Convention on the Rights of the Child adopted in 2000 supplements
the international law framework by raising the age concerning participa-
tion in hostilities to eighteen (Article 1), prohibiting the compulsory
29
Prosecutor v Thomas Lubanga Dyilo, Situation in the Democratic Republic of the
Congo, ICC-01/04-01/06, Judgment pursuant to Art 74 of the Statute (14 March 2012)
(Lubanga Trial Judgment) para 569.
30
Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts, 8 June 1977, art 77(2).
31
Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, art
4(3)(c).
32
ICRC, Customary International Humanitarian Law (online IHL database), Rule
136. Recruitment of Child Soldiers
33
Convention on the Rights of the Child, UN Doc A/RES/44/25 (20 November
1989) in force 2 September 1990.12 QIL 60 (2019) 5-23 ZOOM IN
recruitment of children under the age of eighteen into the armed forces
of States parties (Article 2), requiring States parties to raise the minimum
age for voluntary recruitment from fifteen (Article 3), and prohibiting the
recruitment or use in hostilities of persons under the age of eighteen by
armed groups (Article 4).34 Despite this significant development, the
ICRC acknowledges that it is not yet clearly established in State practice
that the minimum age for recruitment is eighteen as opposed to fifteen.35
The Special Court for Sierra Leone (SCSL) was the first international
court to apply equivalent provisions to those contained in the ICC Statute
as ‘serious violations of international humanitarian law’ set out in Article
4(c) of the SCSL Statute as follows: ‘Conscripting or enlisting children
under the age of 15 years into armed forces or groups or using them to
participate actively in hostilities.’36 The jurisprudence of the SCSL indi-
cates that the child soldier-related offences are open to a relatively broad
interpretation and that their evolution has been closely tied to the facts
presented in different cases. 37 Recruitment into the Civil Defence Forces
(CDF), which fought on behalf of the Sierra Leone government, was of-
ten ‘voluntary’ in the sense that parents might offer up and pay for the
initiation of their children, persuaded by traditional beliefs that the initi-
ation process would confer on children mystical powers and render them
impervious to bullets.38 Children also joined the CDF out of ‘patriotism
to support the democratically-elected Sierra Leonean government’ or to
‘protect their families and communities, or punish the rebels.’39 By con-
trast, the rebel groups known as the Revolutionary United Front (RUF)
34
Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict, UN Doc A/RES/54/263 (25 May 2000).
35
See (n 32) above.
36
Statute of the Special Court for Sierra Leone (16 January 2002).
37
Prosecutor v Brima, Kamara, Kanu, SCSL-04-16-T, Judgment, Trial Chamber (20
June 2007) (AFRC Trial Judgment); Prosecutor v Fofana, Kondewa, SCSL-04-14-T,
Judgment, Trial Chamber (2 August 2007) (CDF Trial Judgment); Prosecutor v Sesay,
Kallon and Gbao, SCSL-04-15-T, Judgment, Trial Chamber (2 March 2009) (RUF Trial
Judgment); Prosecutor v Taylor, SCSL-03-01-T, Judgment, Trial Chamber (18 May 2012)
(Taylor Trial Judgment).
38
WA Schabas, ‘The Rights of the Child, Law of Armed Conflict and Customary
International Law: A Tale of Two Cases’, in K Arts, V Popovski, International Criminal
Accountability and the Rights of Children (Hague Academic Press 2006) 19-35, 30.
39
MA Drumbl, Reimagining Child Soldiers in International Law and Policy (OUP
2012) 64.Children associated with terrorists groups 13
and Armed Forces Revolutionary Council (AFRC) tended to resort to
abduction.40
A key contextual requirement that must be satisfied in any prosecu-
tions for war crimes is that ‘the conduct took place in the context of and
was associated with an armed conflict’.41 In this respect, international
criminal law does not distinguish between terrorist groups and any other
armed groups, the core question being simply whether the group is a
party to an armed conflict of an international or non-international char-
acter. The ICC has so far regarded enlistment, conscription and use in
hostilities as three separate crimes, which contain some common ele-
ments, such as knowledge that the person was under the age of fifteen.42
Enlistment entails the acceptance and enrolment of individuals who
volunteer to join an armed force or group.43 The ICC Trial Chamber
recognised in the Lubanga case that enlistment is a form of voluntary in-
corporation into an armed group and referred to the ordinary meaning
of ‘enlisting’ as being ‘to enrol on the list of a military body’.44 The SCSL
Appeals Chamber, in addressing a defence argument that the Trial
Chamber had erroneously conflated ‘initiation’ as fighters and enlist-
ment, noted the paucity of jurisprudence on the question of how direct
an act must be to constitute enlistment as well as the possible modes of
enlistment.45 Finding that there must be a nexus between the act of the
accused and the child joining the armed force or group, the Appeals
Chamber decided that a formal process is not envisaged especially where
the armed group is not a conventional military organisation.46 Thus, en-
listment could include ‘any conduct accepting the child as a part of the
militia’, which encompasses making the child participate in military
40
ibid.
41
ICC Elements of Crimes, art 8 (2)(b)(xxvi) element 4 (international armed
conflicts); art 8 (2)(e)(vii) element 4 (non-international armed conflicts).
42
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06A5, Judgment on the appeal
of Mr Thomas Lubanga Dyilo against his conviction (1 December 2014) (Lubanga Appeal
Judgment) paras 37-38; ICC Elements of Crimes, art 8(2)(e)(vii), War crime of using,
conscripting and enlisting children.
43
Prosecutor v Fofana, Kondewa, SCSL-04-14-A-829, Judgment, Appeals Chamber
(28 May 2008) (CDF Appeal Judgment) para 140.
44
Lubanga Trial Judgment (n 29) para 608, referring to the Oxford Dictionary.
45
CDF Appeal Judgment (n 43) para 141.
46
ibid para 144.14 QIL 60 (2019) 5-23 ZOOM IN
operations.47 The principle that enlistment may be informal and consti-
tuted by ‘use’ in hostilities has subsequently been affirmed.48 According
to SCSL Justice Winter, ‘the key test to determine whether an act in ques-
tion constitutes enlistment is whether the act substantially furthers the
process of a child’s enrolment and acceptance into an armed force or
group’.49 Therefore initiation, on the particular facts of the case, was a
‘stepping stone to recruitment as a soldier’,50 indeed the condition sine
qua non.51
Conscription involves compulsion or coercion.52 The ICC Trial
Chamber in the Lubanga case noted that the ordinary meaning of the
word was ‘to enlist compulsorily’.53 While traditionally associated with
military service in a State’s armed forces, the jurisprudence has estab-
lished that conscription encompasses acts of coercion, such as abductions
and forced recruitment of children by an armed group with the purpose
of using them to participate actively in hostilities.54 The SCSL Trial
Chamber used the term conscription interchangeably with ‘forced re-
cruitment’ which often involves abduction followed by military train-
ing.55 The ICC Appeals Chamber has clarified that ‘the element of com-
pulsion necessary for the crime of conscription can be established by
demonstrating that an individual under the age of fifteen years joined the
armed force or group due to, inter alia, a legal obligation, brute force,
threat of force, or psychological pressure amounting to coercion’.56
The precise scope of the category of use in hostilities remains unset-
tled. The ICC has confirmed that the use of the expression ‘to participate
actively in hostilities’, as opposed to the expression ‘direct participation’
(as found in Additional Protocol I to the Geneva Conventions) was in-
tended to import a wide interpretation to the activities and roles that are
47
ibid.
48
Taylor Trial Judgment (n 37) para 442.
49
CDF Appeal Judgment (n 43) Partially Dissenting Opinion of Honourable Justice
Renate Winter, para. 11.
50
ibid para 15, referring to the testimony of an expert witness.
51
ibid para 18.
52
AFRC Trial Judgment (n 37) para 734; Taylor Trial Judgment (n 37) para 442;
Lubanga Trial Judgment (n 29) para 607.
53
Lubanga Trial Judgment (n 29) para. 607.
54
AFRC Trial Judgment (n 37) para 734; Taylor Trial Judgment (n 37) para 441.
55
RUF Trial Judgment (n 37) para. 186.
56
Lubanga Appeal Judgment (n 42) para. 278.Children associated with terrorists groups 15
covered by the offence.57 Both the ICC and SCSL Trial Chambers have
indicated that the decision as to whether a particular activity counts as
active participation will be made on a case-by-case basis.58 The SCSL’s
Trial Chamber II found that using children to participate actively in hos-
tilities ‘encompasses putting their lives directly at risk in combat’ alt-
hough it is not so limited.59 The ICC Appeals Chamber rejected the ICC
Trial Chamber’s conclusion that ‘[t]he decisive factor […] is whether the
support provided by the child to the combatants exposed him or her to
real danger as a potential target’.60 According to the ICC Appeals Cham-
ber it is simply necessary to demonstrate the existence of a sufficient link
between the activity and the hostilities.61 The Chamber declined to give
a list of examples of activities that might constitute active participation in
hostilities, noting ‘the complex and unforeseeable scenarios presented by
the rapidly changing face of warfare in the modern world’.62 The types of
activity that have so far been found to qualify include: scouting, spying
or sabotage; acting as decoys, couriers, at military checkpoints or as bear-
ers to take supplies to the front line; involvement at the front line itself;
carrying loads for the fighting faction; finding and/or acquiring ammuni-
tion and equipment; making trails or finding routes; manning check-
points; acting as human shields; and acting as bodyguards or guards at
strategic sites in terms of the particular war effort. Activities which most
likely do not qualify are conducting food deliveries and unarmed food-
finding missions, and serving as domestic staff. 63
Several aspects of the conduct of both IS and Boko Haram outlined
above fit within the categories of enlistment, conscription and use to par-
ticipate actively in hostilities. The definition of enlistment extends to ‘for-
eign fighters’ under the age of fifteen, whether they join a terrorist organ-
isation independently or at the instigation of parents or relatives. Fur-
ther, enlistment could encompass indoctrination as conduct accepting
the child into the organisation. Where the association with the terrorist
57
Lubanga Trial Judgment (n 29) para 627; Lubanga Appeal Judgment (n 42) para
328.
58
Lubanga Trial Judgment (n 29) para 628; Taylor Trial Judgment (n 37) para 444.
59
Taylor Trial Judgment (n 37) para 444; AFRC Trial Judgment (n 37) para 736.
60
Lubanga Trial Judgment (n 29) para 628.
61
Lubanga Appeal Judgment (n 42) para 333.
62
ibid para 335.
63
Jørgensen, ‘Child Soldiers’ (n 28) 671.16 QIL 60 (2019) 5-23 ZOOM IN
group has no element of voluntariness, conscription may be the appro-
priate category and the ICC’s jurisprudence recognises that psychological
pressure may be sufficient to meet the element of coercion. Using chil-
dren to carry out suicide bombings has not been a feature of the jurispru-
dence to date, but this conduct would undoubtedly be included as a form
of participation in hostilities. As it concerns rape, sexual slavery and
forced marriage, the question of law identified in the Lubanga judgment
as to whether these offences may properly be included within the scope
of using children under the age of 15 to participate actively in hostilities
remains open to debate.64 The emphasis on sexual and gender-based vi-
olence in the context of acts attributed to Boko Haram and IS suggests
that future cases at the international level are unlikely to follow the re-
stricted charging practice adopted in Lubanga, which limited the case to
the child soldier-related offences, and will invoke the full range of avail-
able legal characterisations. Notably, the ICC Appeals Chamber appears
to have suggested that rape could constitute the force needed for con-
scription,65 and has furthermore decided that it is legitimate to charge a
member of an armed group with forms of sexual violence as war crimes
carried out against children recruited into the same armed group.66
In 2010, the ICC opened a preliminary examination into the situation
in Nigeria (a State party to the Rome Statute since 2001), currently focus-
ing on three factions under the umbrella of Boko Haram, namely a fac-
tion led by Abubakar Shekau, the Ansaru splinter group, and the Islamic
State West Africa led by Abu Musab Al-Barnawi.67 In order to determine
whether Boko Haram constituted an armed group engaged in a non-in-
ternational armed conflict so as to meet the contextual requirement for
war crimes, the ICC Office of the Prosecutor considered the organisa-
tional structure of Boko Haram and the intensity of its armed confronta-
tions with government forces.68 The ICC concluded that ‘the required
64
Lubanga Trial Judgment (n 29) para 630; Jørgensen, ‘Child Soldiers’ (n 28) 679-
685.
65
Lubanga Appeal Judgment (n 42) paras 281-282.
66
Prosecutor v Bosco Ntaganda, ICC-01/04-02/06OA5, Judgment on the appeal of
Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction
of the Court in respect of Counts 6 and 9” (15 June 2017).
67
ICC Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2018’
para 218.
68
ICC Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2013’
para 214.Children associated with terrorists groups 17
level of intensity and the level of organization of parties to the conflict
necessary for the violence to be qualified as an armed conflict of non-
international character’ had been met’.69 Consequently, allegations of
war crimes within the scope of articles 8(2)(c) and 8(2)(e) of the ICC
Statute occurring since May 2013 could potentially be adjudicated before
the ICC.70
In its 2018 Report on Preliminary Examination Activities, the ICC
Office of the Prosecutor found a reasonable basis to believe that Boko
Haram had committed ‘rape, sexual slavery and sexual violence pursuant
to article 8(2)(e)(vi); conscripting and enlisting children under the age of
fifteen years into armed groups and using them to participate actively in
hostilities pursuant to article 8(2)(e)(vii) of the Statute’ in addition to
other war crimes and crimes against humanity.71 The Office referred to
its own analysis from 2016 addressing gender-based violence which
found that children, women and girls were subjected to abductions,
forced marriages, rapes, sexual slavery and sexual violence, and use for
operational tasks such as suicide attacks. 72 Some of these acts were also
brought under the heading of persecution on gender grounds as a crime
against humanity and special attention was paid to crimes against chil-
dren.73
At this stage, the ICC is still engaged in an admissibility assessment
and has noted the steps taken by the Nigerian authorities to institute pro-
ceedings against Boko Haram and other parties to the conflict. As it con-
cerns Syria, which is not a party to the ICC, documentation efforts by,
for example, the recently established ‘International, Impartial and Inde-
pendent Mechanism to assist in the investigation and prosecution of per-
sons responsible for the most serious crimes under International Law
committed in the Syrian Arab Republic since March 2011’ continue. An
‘Investigative Team to Promote Accountability for Crimes Committed by
Da’esh/Islamic State in Iraq and the Levant’ has commenced operations
and has reported that during ISIL’s control of large amounts of territory
in Iraq between 2014 and 2017, war crimes, crimes against humanity and
69
ibid para 218.
70
ibid paras 214-218.
71
ICC, ‘Report on Preliminary Examination Activities 2018’ para 222.
72
ibid para 225.
73
ibid para 226.18 QIL 60 (2019) 5-23 ZOOM IN
genocide may have been committed.74 The Investigative Team has indi-
cated, following international practice, that it will focus on ‘those most
responsible for the atrocities committed by ISIL’, including the senior
ISIL leadership, as well as regional or mid-level commanders.’75 The like-
lihood of any prosecutions for IS or Boko Haram crimes at the interna-
tional level appears slim for the foreseeable future, and these would in
any case be limited to a pool of candidates of sufficient seniority. Thus,
the torch is passed back to domestic systems which, partly due to the
challenges of collecting evidence in conflict zones, have tended to focus
their attention on terrorism offences.
4. The status of children (formerly) associated with terrorist groups
According to the international human rights framework, all children
under the age of eighteen who become associated with parties to an
armed conflict are to be regarded primarily as victims. The UN reports
make this clear. For example, the Secretary-General ‘call[s] upon the
Government of Nigeria to ensure that all children allegedly associated
with armed groups are primarily treated as victims’.76 Similarly, the Sec-
retary-General has expressed deep concern about ‘the fate of children,
including of foreign origin, affiliated or allegedly affiliated with parties to
the conflict in the Syrian Arab Republic’ and calls upon ‘parties encoun-
tering and receiving these children to abide by international norms and
standards and treat those children primarily as victims’.77 Additionally,
in the Syrian context, the Secretary-General has stated: ‘All children al-
legedly associated with opposing armed forces or armed groups and cap-
tured in the course of military operations should be treated primarily as
victims of recruitment and use’.78
74
‘Letter dated 15 November 2018 from the Special Adviser and Head of the United
Nations Investigative Team to Promote Accountability for Crimes Committed by
Da’esh/Islamic State in Iraq and the Levant addressed to the President of the Security
Council’ UN Doc S/2018/1031 (16 November 2018) para 8.
75
ibid, para 26.
76
‘Report of the Secretary-General on children and armed conflict in Nigeria’ UN
Doc S/2017/304 (10 April 2017).
77
‘Report of the Secretary-General, Children and Armed Conflict’ (n 11) para 198.
78
‘Report of the Secretary-General, Children and Armed Conflict in the Syrian Arab
Republic’ (n 20) paras 62-63.Children associated with terrorists groups 19
It has additionally been observed that children who are recruited and
used in hostilities are ‘often doubly victimized by subsequently being de-
tained for their former association with armed forces or groups’.79 An
extreme example is provided by an incident in February 2016 in which
three children between the ages of fifteen and seventeen were publicly
beheaded by ISIL following their arrest and interrogation on allegations
of spying against the group.80 Children of foreign origin have also been
detained by opposing forces on account of their suspected family ties
with ISIL fighters.81 Some children are reported to have been ill-treated,
tortured and/or raped during their detention.82 The perception that
these children are victims is essential to ensure their release and reinte-
gration into society and their eligibility for the support of child protection
programmes.83
The international criminal law framework suggests, however, that
only children under the age of fifteen are technically victims of the child
soldier-related crimes committed by the adults who recruit and abuse
them. This means that there is a grey area of children between the ages
of fifteen and eighteen who are not formally perceived as victims of the
specific offences but are nonetheless victims of a practice that violates
their human rights. Article 7 of the Statute of the SCSL in fact recognised
the court’s jurisdiction in principle over children between the ages of fif-
teen and eighteen to be exercised in accordance with international hu-
man rights standards. Although no prosecutions were brought against
children, the provision reflected the reality that some children had en-
gaged in brutal acts of violence during the conflict in Sierra Leone and
could not easily be characterised as victims. By contrast, Article 26 of the
ICC Statute excludes jurisdiction over persons under the age of eighteen.
The ICC, however, firmly rejected Ongwen’s argument that because he
was abducted into the LRA as a young child soldier he should benefit
from the legal protections afforded to child soldiers for the duration of
his time with the LRA from 1987 to 2015, and be exempt from individual
79
‘Report of the Secretary-General, Children and Armed Conflict’ (n 11) para 6.
80
‘Report of the Secretary-General, Children and Armed Conflict in the Syrian Arab
Republic’ (n 20) para 23.
81
ibid para 24.
82
‘Report of the Secretary-General, Children and Armed Conflict (n 11) para 186.
83
‘Report of the Secretary-General, Children and Armed Conflict in the Syrian Arab
Republic’ (n 20) paras 62-63.20 QIL 60 (2019) 5-23 ZOOM IN
criminal responsibility as an adult.84 As the Ongwen case demonstrates,
following disassociation from a terrorist or armed group, former child
soldiers who commit crimes as adults may be prosecuted at the interna-
tional level. While it is unlikely that international prosecutions will ever
target children between the ages of fifteen and eighteen, children remain
vulnerable to prosecution domestically for terrorism offences.
Pursuant to their obligations under international treaties and in re-
sponse to emerging threats, most States have domestic laws that prohibit
and punish financing, joining and supporting terrorist groups as well as
acts of terrorism.85 Notably, Nigeria has primarily invoked its Terrorism
(Prevention) Act 2011 with respect to allegations against Boko Haram.
This has meant that in domestic cases the charges include membership
of a terrorist organization or the failure to report acts of terrorism to the
authorities, rather than crimes under the ICC Statute such as the recruit-
ment and use of child soldiers.86 It is unclear whether charges have been
brought against any children. Human Rights Watch has reported that
there have been prosecutions in Iraq of foreign adults and children as
young as nine for links to IS.87 The minimum age of criminal responsi-
bility varies between domestic systems, but it is often below fifteen. For
example, in the UK the age is ten years. Although the figures are general,
the UK reported ‘the highest proportion of under-18s arrested on suspi-
cion of terrorism offences – 6%’ in 2018.88 This suggests that some
84
Prosecutor v Dominic Ongwen, Situation in Uganda, ‘Decision on the confirmation
of charges against Dominic Ongwen’, ICC-02/04-01/15-422-Red (23 March 2016) para
150.
85
See eg International Convention for the Suppression of the Financing of Terrorism
UN Doc A/RES/54/109 (9 December 1999). In the United Kingdom, see Terrorism Acts
2000 and 2006, and Counter-Terrorism and Border Security Act 2019. See also United
Nations Office on Drugs and Crime, ‘Handbook on Children Recruited and Exploited
by Terrorist and Violent Extremist Groups: The Role of the Justice System’ (Vienna,
2017) 72-73.
86
ICC Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2018’
paras 234-235.
87
‘Tunisia: Scant Help to Bring Home ISIS Members’ Children: 200 Held in Squalid
Camps and Prisons in Libya, Syria, Iraq’ Human Rights Watch (12 February 2019)
.
88
‘Operation of police powers under the Terrorism Act 2000 and subsequent
legislation: Arrests, outcomes, and stop and search, Great Britain, quarterly update to
December 2018’ Statistical Bulletin 05/19 (7 March 2019) 14; J Grierson, ‘Number of
People in Jail for Terrorism Offences Falls for First Time Since 2013’ The Guardian (7
March 2019).Children associated with terrorists groups 21
children within the ten to eighteen age range may face prosecution alt-
hough according to the international framework, rehabilitation and rein-
tegration especially of younger children should be prioritised.89
Returning to Begum’s case at this juncture, it has not been established
whether she only carried out domestic chores or whether she was at least
complicit in acts of violence. In other words, it is not known whether she
is or was a ‘committed jihadi or grooming victim’.90 Children in Begum’s
position could fall into either of these categories and a structured ap-
proach to justice and rehabilitation is required so that they are not left to
re-radicalise or disintegrate psychologically in displaced persons camps,
also taking account of the fact that they may be victims of sexual violence
and forced marriage. This raises the ‘ticking time bomb issue’ which is
exclusive to children associated with terrorist groups, in the sense that
they may present an ongoing security risk in a manner that is not typical
of children associated with other armed groups. The security concern
should not influence the question of accountability for past acts of ter-
rorism but presents a catalogue of challenges when it comes to reintegra-
tion or repatriation. In particular, in the context of terrorism there is a
need to examine the process of radicalization and institute effective
measures for deradicalization.
Despite ‘ticking time bomb’ fears, children should be entitled at least
to a presumption of victim status up the age of fifteen and assessed on a
case-by-case basis between the ages of fifteen and eighteen in accordance
with international criminal law and human rights law. Like Begum, many
of those who went to Syria as children are now adults and should in prin-
ciple face justice in respect of any continued association with a terrorist
group as an adult. As it concerns prosecutions of children, the UN reit-
erated in its Global Counter-Terrorism Strategy Review of 2016 that
‘given their potential status as victims of terrorism as well as of other vi-
olations of international law, every child alleged as, accused of or
89
See C Paulussen, K Pitcher, ‘Prosecuting (Potential) Foreign Fighters: Legislative
and Practical Challenges’ International Centre for Counter-Terrorism – The Hague,
Research Paper (January 2018) 24 .
90
L Khalil, ‘Repatriating Female Foreign Fighters: Political not Personal’ The
Interpreter (19 February 2019) .22 QIL 60 (2019) 5-23 ZOOM IN
recognized as having infringed the law, particularly those who are de-
prived of their liberty, as well as child victims and witnesses of crimes,
should be treated in a manner consistent with his or her rights, dignity
and needs, in accordance with applicable international law’.91 The Re-
view goes on to urge States to take measures to reintegrate children for-
merly associated with armed and terrorist groups. The preferred option
for authorities in Syria and Iraq appears to be for foreign women and
children who have been associated with terrorist groups to be repatri-
ated. Belgium has instituted a policy according to which children under
the age of ten have the right of immediate return while children between
the ages of ten and eighteen are reviewed on a case-by-case basis.92
However, the Begum case demonstrates the absence of a clear policy on
repatriation of former foreign child fighters and their children in some
countries.93
5. Conclusion
The question of what to do with children formerly associated with
terrorist groups has become acute now that the threat to children posed
by Boko Haram and IS has begun to diminish and these groups are slowly
defeated. These children, some of whom are now adults like Begum, may
be victims, perpetrators or ticking time bombs but leaving them to
languish in displaced persons camps after their ‘liberation’ simply
exacerbates the problem. If very young children born into terrorist
groups are not shown a different type of existence before becoming too
scarred, they may well themselves become the next generation of ticking
time bombs, easily radicalised and recruited.
The international criminal law framework governing the recruitment
and use of child soldiers provides a useful reference point for domestic
authorities contemplating prosecutions under anti-terror legislation. It
also helps to explain that Begum was not a ‘child soldier’ under this
91
‘The United Nations Global Counter-Terrorism Strategy Review’ UN Doc
A/RES/70/291 (19 July 2016) para 18.
92
R Kennedy, ‘What is Europe’s Approach to Repatriating ISIS Members?’
Euronews answers, Euronews (7 March 2019) .
93
ibid.Children associated with terrorists groups 23
framework as she enlisted in IS when she was fifteen, but that in the eyes
of international human rights law she may still have been a victim of
abuses by her recruiters. It is to be hoped that domestic prosecutions in
this context will consider the concurrence of terrorism law and
international criminal law not just in terms of the charge sheet but also in
relation to the philosophical underpinnings of these categories. 94
Prosecutions are only an add-on to a package of measures that need
to be taken to rehabilitate and reintegrate children formerly associated
with terrorist groups. Further research is required to guide policy on such
measures, recognising the victim, perpetrator or ticking time bomb co-
nundrum and the stigma attached to each alternative.
94
For example, Jennifer Wenisch, a former member of the morality police in Fallujah
and Mosul accused of the murder of a five-year-old Yazidi girl, has been charged
concurrently with war crimes and membership of a terrorist organisation in Germany.
‘Female Member of Isis ‘Morality Police’ Charged over Murder of Five-year-old Girl
Kept as Slave in Iraq’ The Independent (28 December 2018) ; ‘German IS Woman Accused of Letting Yazidi Girl Die of Thirst’
RTE News (9 April 2019) .You can also read
